"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v KSB Australia Pty Ltd

[2013] FWC 4340

[2013] FWC 4340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
KSB Australia Pty Ltd
(C2012/1272)

COMMISSIONER RYAN MELBOURNE, 3 JULY 2013

Alleged dispute concerning an employee not covered by agreement.

[1] The AMWU filed an application on 17 October 2012 for FWA to deal with a dispute in accordance with the dispute settlement procedure of the KSB Australia Pty Ltd (Tottenham) Enterprise Agreement 2011 (the Agreement).

[2] The dispute was identified as follows:

“1. The Respondent is refusing to recognise an employee of the respondent as being covered by the Agreement.

2. As a result, the employee is receiving terms and conditions of employment that are less favourable than those received by other employees of the respondent who are given benefit of coverage.”

[3] The dispute was subject to a conciliation conference on 1 November 2012 and a further conciliation conference conducted by telephone on 26 November 2012. As these conferences failed to resolve the matter in dispute the matter was then listed for arbitration on 10 December 2012. The arbitration was preceded by the Commission attending the workplace on 10 December 2012 to inspect the work being performed by the employee in question.

[4] The hearing on 10 December 2012 was limited to the presentation of submissions by the parties. No evidence was called by either side as there was no dispute over the work performed by the relevant employee.

[5] Each party provided to the Commission a list of the duties of the employee in dispute. The Applicant’s list is at Attachment A and the Respondent’s list is at Attachment B. There is a high degree of commonality between the lists and for the purposes of this matter and any differences between the lists is not of any material nature.

[6] The AMWU filed its final submissions on 25 March 2013. KSB filed its final submissions on 12 April 2013 and the AMWU filed its reply submissions on 23 April 2013.

Background

[7] The Respondent employs a number of employees who are titled Production Planners (KSB Production Planners).

[8] These Production Planners have previously been paid in accordance with the Agreement.

[9] Recently the Respondent engaged a new employee as a KSB Production Planner but paid this new Production Planner a lower wage rate than the other Production Planners. The new wage rate reflected the Respondent’s view that KSB Production Planners were not in fact covered by the Agreement but were properly covered by the Clerks - Private Sector Award 2010.

[10] The AMWU on behalf of the new KSB Production Planner asserted that the Agreement does cover the work of those employees titled Production Planners and the new KSB Production Planner should be paid in accordance with the Agreement.

[11] The AMWU contended that the work in question was properly covered by the Agreement, in that, the Agreement applied to Production Planners and the work of the employee was that of a production planner.

[12] The Respondent contended that the employee was properly covered by the Clerks Private Sector Award 2010 and the work of the employee was clerical administrative work.

[13] The issue in dispute concerns the application of the Agreement and the coverage provisions of the Agreement are as follows:

“3. APPLICATION

This agreement shall apply to all employees of KSB Australia Pty Ltd engaged at the Company's workplace at 27 Indwe Street, Tottenham, Vic, 3012 and who are bound by the terms of the Manufacturing and Associated Industries and Occupations Award 2010 and are directly employed in the manufacturing, service, warehouse, despatch and goods receipt.

4. COVERAGE

This Agreement binds:

KSB Australia Pty Ltd,

The Employees as specified in Clause 3 of this Agreement,

The Australian Manufacturing Workers union, subject to Section 183 of the Fair Work Australia Act 2009”

[14] The employees of the Respondent who are covered by the Agreement are only those employees who satisfy two conditions. Firstly they must be employees who would, but for the operation of the Agreement, be covered by the Manufacturing and Associated Industries and Occupations Award 2010. Secondly, they must also be employees who are “directly employed in the manufacturing, service, warehouse, despatch and goods receipt”.

[15] The language of clauses 3 and 4 of the Agreement would operate so that an employee of the Respondent who would, but for the operation of the Agreement, be covered by the Manufacturing and Associated Industries and Occupations Award 2010, but who is only indirectly “employed in the manufacturing, service, warehouse, despatch and goods receipt” would not be covered by the Agreement.

[16] The Respondent contends that:

“Although clause 4.9(c)(iv) of the Manufacturing Award covers an occupation called “Production Planners”, the Respondent submits that the duties of the KSB Production Planner are not the same as those in the Manufacturing Award. It is necessary to look to the definition of “Production Planners” and the classification definitions and structure under the Manufacturing Award (in order to compare those duties with the KSB Production Planner positions) because employees must be covered by the classification structure in the Manufacturing Award to be covered by that Award – see clause 4.1 of the Manufacturing Award.

The Respondent submits that the Manufacturing Award has no classification for the KSB Production Planners because all of the classifications under the Manufacturing Award require the attainment or exercise of engineering/technical qualifications, skills, or knowledge, whereas the KSB positions do not require any such engineering/technical qualifications, skills or knowledge. It is submitted that the KSB positions are of a clerical/administrative nature and are therefore covered by another award with occupational coverage – see note at end of clause 4.11 of the Manufacturing Award – in this case the Clerical Award.

This is because, although these positions at KSB have, due to history and internal processes been called “Production Planners”, this is simply a job title and does not make the positions “Production Planners” positions under the classification in the Manufacturing Award simply because the job title is the same.

An examination of the actual duties, tasks and qualifications required of the KSB Production Planners, demonstrates that the Manufacturing Award does not apply and that another award with occupation coverage (namely the Clerical Award) applies.

The duties that the employee in this case (as a KSB Production Planner) actually performed are set out in the agreed list of duties that have been filed with the Commission.

It is submitted that these duties demonstrate the employee was not engaged in the occupation of production planner as defined under the Manufacturing Award. The duties involve no technical skills nor require any technical or engineering qualifications, experience or knowledge rather the duties are the ordinary work of administration.”  1

[17] The Applicant contends that:

“5. It is submitted that the duties performed by the KSB Production Planners perform are included in the definition of production planners under the Manufacturing Award, in particular the employees are:

"mainly engaged in either parts of, or a combination of, or all of:

(a) The planning of operations, methods or processes including the estimation of requirements of labour, tools or other equipment or components of goods by

engineering processes;"

6. KSB are incorrect in their assertion that the duties as described above require the employee perform "engineering processes". What is required is that the processes that are used in production of the goods is an engineering process. If the employee is involved in the

planning of the processes;

estimation of the labour involved in the processes;

estimation of the tools involved in the processes;

estimation of other equipment used in the processes; or

estimation of the components of goods that are produced

the employee is performing the work of a production planner as defined by the

Manufacturing Award.

7. It is submitted that the KSB Production Planners perform the above duties. The KSB Production Planners are directly involved in the production process of the goods. The agreed summary of duties which was marked "Attachment 1" and appended to the applicant's initial submissions clearly demonstrates that the duties performed by the KSB Production Planners fall within the coverage of the Manufacturing Award in that the KSB Production Planners are "mainly engaged in either parts of, or a combination of, or all of:"

planning of the processes

estimation of the labour involved in the processes;

estimation of the tools involved in the processes;

estimation of other equipment used in the processes; or

estimation of the components of goods that are produced

8. Although no formal classification through a registered organisation has been undertaken in relation to the KSB Production Planners it is submitted that the duties performed by the KSB Production Planners fall within the C10 or C11 classifications under the Manufacturing Award.

9. The following field as defined by clause 3 is relevant in classifying the KSB Production Planners:

"(c) engineering/manufacturing field which includes employees primarily engaged in production work including production, distribution, stores and warehousing, which does not require a qualification in the trade, technical, professional or supervisory field."

10. The KSB Production Planners are engaged in the engineering/manufacturing field as they are primarily engaged in production as well as performing duties involved in distribution and stores and warehousing. The Manufacturing Award does not require that that KSB Production Planners hold a qualification. It is submitted that being primarily engaged in production can include the planning of production which, as demonstrated above, is what the KSB Production Planners are involved in.

11. It is submitted that the KSB Production Planners fall under schedule B, clause 8.3.6 Wage group C11. In particular it is submitted that the KSB Production Planners are Manufacturing Employees - Level IV in that they are "an employee who has completed an Engineering Production Certificate II or Certificate II in Engineering- Production Technology or equivalent to enable the employee to perform work within the scope of this level."

12. At clause B.3.1(b)(i) or equivalent means:

Where competencies meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.

13. At clause B.3.1(b)(ii) work within the scope of this level means:

“For an employee who does not hold a qualification listed as a minimum training requirement, that the employee can apply skills within the enterprise selected in accordance with the National Metal and Engineering Competency Standards Implementation Guide, provided that the competencies selected are competency standards recognised as relevant and appropriate by Manufacturing Skills Australia and endorsed by the National Quality Council.”

14. It is submitted that the KSB Production Planners do not need to hold a formal qualification provided that they apply skills and meet the requirements in the National Metal and Engineering Competency Standards Implementation Guide (the Implementation Guide). It is submitted that the Implementation Guide includes a wide range of types of tasks and skills and that the skills used by the KSB Production Planners fall within the Implementation Guide.

15. Further the KSB Production Planners could also be classified as C10 level Manufacturing Employee who "works above and beyond an employee at the C11 level and to the level of their skills, competencies and training:

Understands and applies quality control techniques;

Exercises good interpersonal communication skills;

Exercises discretion within the scope of this classification level;

Exercises keyboard skills at a level higher than the C111evel;

Performs work under limited supervision either individually or in a team

environment;

Inspects products and/or materials for conformity with established

operational standards.” ²

(Note para 7 above has been edited to remove examples under each dot point.)

[18] There was a paucity of material presented to the Commission on the history of the classification structures in either of the Manufacturing and Associated Industries and Occupations Award 2010 (which was incorporated into the Agreement) and the Clerks Private Sector Award 2010.

[19] The Commission used the resources within the Commission to have some research done on 4 specific issues:

1. the history of the production planner classification in the Manufacturing Award (or another award if found)

2. Clerical Award - the history of the references to the extraction and use of information from existing records in classification level 3 of the current Award or its predecessors (including if that function was always at level 3)

3. during the structural efficiency processes relativities were established across the clerical/professional/construction/technical bands in the public sector - this document would be helpful if it can be located to establish the relativities of the production planner classification to the clerical bands

4. clarification of “equivalent” as used in the description for classifications in the Manufacturing Award MA000010.

[20] The research result was provided to the Commission on 22 January and made available to both parties. No information was found in relation to the third issue. The research results for the other issues were useful.

[21] The parties were given a further opportunity of making written submissions addressing the research results and their final submissions on the matter.

[22] I will start the consideration of the matter in dispute by identifying the answer to the first question on which internal research was conducted by the FWC.

“The history of the production planner classification in the Manufacturing Award (or another award if found)

Prior to the introduction of the Manufacturing and Associated Industries award (MA000010) the classification of ‘production planner’ was covered by the Metal, Engineering and Associated Industries Award 1998 - Part II - Draughting, Planning and Technical Employees [AP789529CRV]. It was classified in a similar way as the modern award as being within the technical field as follows:

1.4.7(b) “Technical Field” includes:

(i) Production planning, including scheduling, work study, and estimating materials, handling systems and like work.

(ii) Technical including inspection, quality control, supplier evaluation, laboratory, non- destructive testing, technical purchasing, and design and development work (prototypes, models, specifications) in both product and process areas and like work.

(iii) Design and draughting and like work.

The classifications within the technical field begin at Engineering Technician Level 1 (C9) and extend to a Principal Technical Officer (C2 (b)) meaning it appears that an employee could be classified as a production planner at any level above C9. This is consistent with both the modern award and the precursor to this award; the Metal Industry Award, 1984 - Part II - Draughtsman, Production Planners and Technical Officers which all contain the same classification structure.

The Metal Industry Award 1984 - Part II - Draughtsmen, Production Planners and Technical Officers [M0041] provides a more detailed definition of the skills, experience and qualifications required under the occupation of project planner than any of the subsequent awards. It provides a definition of production planners as follows;

PLANNERS

Production planner

Production planner means an adult employee:

(a) (i) who has been engaged for at least four years as a planning assistant or who has had two years experience as a planning technician, or who has had training deemed by the employer to be equivalent thereto; and

(ii) who has received from a State Education Department or Technical Education Department a certificate of Production Engineering or its equivalent; and

(b) who is required to perform duties of the planning of operations and/or methods and/or processes, including the estimation of requirements of manpower, tools or other equipment for the production of plant or equipment or components or goods by engineering processes and who in carrying out such work is required to apply the skill acquired pursuant to the provisions of paragraphs (a)(i) and (ii) hereof.

(c) Notwithstanding the provisions of paragraphs (a)(i) and (ii) hereof, an employer shall classify an employee as a production planner who for six months satisfactorily performs work which is of the same nature as required by subclause (b) hereof and which requires the application of a similar standard of knowledge and/or engineering experience which has been acquired by other means than as provided for in paragraphs (a)(i) and (ii) hereof.

Leading production planner

A leading production planner shall mean a production planner who is required to supervise three or more technical persons engaged in planning activities, of whom at least one is performing the work of a production planner.

Planning technician

Planning technician shall mean an adult employee who has had at least two years experience as a planning assistant or other experience deemed by the employer to be the equivalent thereof and who, under the supervision of technical staff, is called upon to perform duties which require the exercise of judgment and skill in excess of that required of a planning assistant, but do not fall within the duties at the level as defined for a production planner.

Leading planning technician

Leading planning technician shall mean a planning technician who is required to supervise and is normally responsible for the work performed by three or more planning assistants or planning technicians of whom at least one is performing work of a planning technician or a leading planning assistant.

Planning assistant

Planning assistant shall mean an adult employee who has completed an appropriate apprenticeship or achieved an equivalent standard of trade knowledge and is employed on routine planning tasks requiring technical skill or knowledge.

Leading planning assistant

Leading planning assistant shall mean a planning assistant who is required to supervise and is normally responsible for the work performed by three or more planning assistants, including trainees and/or apprentices.”

This is consistent with the Manufacturing and Associated Industries and Occupations Award 2010 (the modern award) which provides a more concise definition without the specification of educational requirements or experience to references to assistants.

Definition of Production Planners under the Manufacturing and Associated Industries and Occupations Award 2010 (clause 3.1)

production planners are employees who are or who are mainly engaged in either parts of, or a combination of, or all of:

(a) the planning of operations, methods or processes including the estimation of requirements of labour, tools or other equipment or components of goods by engineering processes; or

(b) the performing of routine tasks requiring engineering skill or knowledge, such as calculations or analysis of technical information, in trades involving structural engineering or the manufacture of agricultural implements, machine tools, motor cars and other vehicles, or electrical goods and equipment.”

[23] The term “production planner” is not used in the classification structure of the modern award which is set out in Appendix B of the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing award). The term “production planner” is used in clause 4.9(c) of the Manufacturing award where the term “Manufacturing and Associated Industries and Occupations” is defined to include the occupations set out in clause 4.9, including the occupation of “production planner”. The definition of “production planner” in clause 3 of the Manufacturing award relates directly to the occupation of “production planner” in clause 4.9(c) of the same award.

[24] The function of “planning” is referred to in classifications C9 through to C2 as set out in Schedule B of the, with the nature of the planning function increasing in complexity and responsibility from C9 to C2. The only reference in Appendix B to a ‘planner’ is in the definition of Engineering Associate/Technician:

B.3.1(b)(iii) Engineering Associate/Technician is a generic term which includes technical officers in a wide range of disciplines including laboratories and quality assurance, draughting officers, planners and other para-professionals.

[25] The predecessor award to the Metal Industry Award 1984 - Part II - Draughtsmen, Production Planners and Technical Officers [M0041] was the Metal Industry (Interim) Award 1971. Part II - Draughtsmen, Production Planners and Technical Officers which was made on 23 August 1971, 139 CAR 917. Clause 5 of the 1971 Interim Award defined certain classifications and the relevantly under the heading “Planners” defined the following classifications:

“Planners

Production Planner:

Production planner means an adult employee-

(a) (i) who has been engaged for at least four years as a planning assistant or who has had two years experience as a planning technician, or who has had training deemed by the employer to be equivalent thereto; and

(ii) who has received from a State Education Department or Technical Education Department a certificate of Production Engineering or its equivalent; and

(b) who is required to perform duties of the planning of operations and/or methods and/or processes, including the estimation of requirements of manpower, tools or other equipment for the production of plant or equipment or components or goods by engineering processes and who in carrying out such work is required to apply the skill acquired pursuant to the provisions of paragraphs (a)(i) and (ii) hereof.

(c) Notwithstanding the provisions of paragraphs (a)(i) and (ii) hereof, an employer shall classify an employee as a production planner who for six months satisfactorily performs work which is of the same nature as required by subclause (b) hereof and which requires the application of a similar standard of knowledge and/or engineering experience which has been acquired by other means than as provided for in paragraphs (a)(i) and (ii) hereof.

Planning Technician:

Planning technician shall mean an adult employee who has had at least two years experience as a planning assistant or other experience deemed by the employer to be the equivalent thereof and who, under the supervision of technical staff, is called upon to perform duties which require the exercise of judgment and skill in excess of that required of a planning assistant, but do not fall within the duties at the level as defined for a production planner.

Planning Assistant:

Planning assistant shall mean an adult employee who has completed an appropriate apprenticeship or achieved an equivalent standard of trade knowledge and is employed on routine planning tasks requiring technical skill or knowledge.

Senior Production Planner:

A senior production planner shall mean a production planner who is required to supervise three or more technical persons engaged in planning activities, of whom at least one is performing the work of a production planner.”

[26] As can be seen the only differences between the 1971 Interim Award and the 1984 Award are the inclusions in the 1984 Award of the classifications of “Leading Planning Technician” and “Leading Planning Assistant” and the renaming of the “Senior Production Planner” to “Leading Production Planner”.

[27] Critically from 1971 the requirement to be a Planning Assistant was the completion of an appropriate apprenticeship or achievement of “an equivalent standard of trade knowledge” and the requirement to be a Production Planner comprised both experience and training and the holding of post trade qualifications.

[28] It is relevant to note that the 1971 Interim Award and other awards with a similar set of definitions, eg the Draughtsmen, Production Planners and Technical Officers (Vehicle Industry) Award 1970, 131 CAR 537 and The Draughtsmen, Planners and Technical Officers (ACT) Award 1975, 167 CAR 909, were all sought to be made by the Association of Architects Engineers Surveyors and Draughtsmen of Australia. It would appear that the very purpose of the classification structure for production planners was to recognise a skilled occupation which sat above the tradesperson skill level. The fact that the Manufacturing award refers to ‘planning’ in classification levels C9 to C2 supports this approach and is consistent with the approach of the 1971 Interim Award.

[29] The contentions of the Applicant that a KSB Production Planner is both performing duties which are “included in the definition of production planners under the Manufacturing Award” and is properly a C11 in that “the KSB Production Planners are Manufacturing Employees - Level IV in that they are "an employee who has completed an Engineering Production Certificate II or Certificate II in Engineering- Production Technology or equivalent to enable the employee to perform work within the scope of this level" appear to be contradictory.

[30] A “Production Planner” as defined in the Manufacturing Award must, having regard to the history of the classification, be an employee with technical qualifications and experience (or equivalent) who is exercising skills at least at the C9 level. For the Applicant to contend that the appropriate level for the KSB Production Planners is C11 or C10 must necessarily mean that KSB Production Planners are not “Production Planners” as defined in the Manufacturing Award.

[31] I accept that the evidence in this matter shows that the duties of the KSB production planner at the centre of this dispute can be included in the generic descriptors of a “Production Planner” in the Manufacturing Award. But that is not sufficient to get to a conclusion that a KSB production planner is a “Production Planner” as defined in the Manufacturing Award. The very fact that the Applicant only asserts that KSB Production Planners are C11 or at the best C10 makes this point clear.

[32] I accept the contention of the Applicant that the KSB Production Planners are “directly involved in the production process” for the reasons outlined in paragraph 7 of the Applicants written submission and that “the KSB Production Planners are engaged in the engineering/manufacturing field as they are primarily engaged in production as well as performing duties involved in “distribution and stores and warehousing” but these contentions miss the critical target.

[33] For a KSB Production Planner to be covered by the Agreement not only must they be capable of being covered by the Manufacturing Award but they must be “directly employed in the manufacturing, service, warehouse, despatch and goods receipt”.

[34] In considering the wording used in clause 3 of the Agreement it is relevant to note that none of the 3 previous collective agreements (2000, 2003 and 2006) which operated prior to the current Agreement had such specific and limiting language as the current Agreement. Weight must be given to the fact that the current Agreement significantly changed the wording of the coverage clause for the enterprise agreement applying at the KSB Tottenham site.

[35] The Courts have provided useful guidance in interpretation of industrial instruments.

[36] In Kucks v CSR Ltd 3, Madgwick J observed:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”

[37] In Short v Hercus Pty Limited 4, a decision of the Industrial Division of the Federal Court, Burchett J says at page 517:

“The question was raised whether it is legitimate, for the purpose of construing a clause of an award, to look at what was called the history of the provision... the court relied on its adoption by the parties from the series of prior agreements, under which a particular interpretation had been accepted, as showing its true construction. There was authority to support this approach... But as the construction of the clause which appealed to the court had also been acted upon after the parties had entered into the industrial agreement, the court referred to Watcham v. Attorney-General of the East Africa Protectorate (1919) AC 533, a decision of the Privy Council which is no longer regarded as good law: F.L. Schuler A.G. v. Wickman Machine Tool Sales Ltd [1973] UKHL 2; (1974) AC 235. So far as Merchant Service Guild is concerned with conduct after the making of the industrial agreement, it was accordingly not followed in Seamen’s Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 FLR 444 at 445; but I do not think that decision affects its authority in relation to the use which may be made, in appropriate circumstances, of the history of a clause found in an industrial agreement...No one doubts you must read any expression in its context. And if, for example And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ said in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarised. As Isaacs J said in Australian Agricultural Co Ltd v Federated Engine-drivers’ and Firemen’s Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury LC: ‘The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it’.

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

. . . Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. ‘Sometimes’, McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation ‘can be discerned only by reference to the history of the legislation and the state of the law when it was enacted’. Awards must be in the same position.”

”

[38] In City of Wanneroo v Holmes 5 also a decision of the Federal Court Industrial Division French J says at paragraph 43:

“The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words - The Clothing Trades Award (1950) 68 CAR 597 (Aust. Indus. Ct. F.C.). The words are to be read as a whole and in context - Australian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award - Pickard v John Heine & Son Ltd [1924] HCA 38; (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all - Seymour v Stawell Timber Industries Pty Ltd [1985] FCA 236; (1985) 9 FCR 241, 244 (Northrop J.), 254 (Keely J.) cf. 265 (Gray J.). The logs of claim and arbitrator’s reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it. - Seamen’s Union of Australia v Adelaide Steamship Co. Limited (1976) 46 FLR 444, 446, disapproving Merchant Seamen’s Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J. said in Geo. A. Bond & Co. Ltd (in liq.) v McKenzie (1929) AR(NSW) 498 at 503:

“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result...from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.” - see also Re Crown Employees (Overtime) Award (1969) AR(NSW) 60, 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123.”

[39] Having regard to both the plain language of clause 3 of the Agreement and the history of the previous collective agreements it is clear that employees indirectly employed in “the manufacturing, service, warehouse, despatch and goods receipt” are not covered by the Agreement.

[40] The contentions of the Applicant make out a very clear case that the KSB Production Planners are indirectly employed “in the manufacturing, service, warehouse, despatch and goods receipt” as the ‘production process’ and ‘production’ includes both those “directly employed in the manufacturing, service, warehouse, despatch and goods receipt” and those indirectly employed“in the manufacturing, service, warehouse, despatch and goods receipt.”

[41] I find that the KSB Production Planners are not covered by the Agreement.

Observations not forming part of the decision

[42] The above finding resolves the matter identified as the dispute in these proceedings.

[43] I now make some observations on the broader context of the matter in dispute but these observations do not form part of the decision of the Commission.

[44] The purpose of the Applicant’s case was to achieve an outcome where the KSB Production Planners would get the entitlements which flow from the Agreement, mainly the higher wage rates which employees who are covered by the Agreement receive.

[45] It is not possible to know what is the potential benefit that may flow to a KSB Production Planner if they were receiving the same terms and conditions of employment as employees covered by the Agreement as the Agreement does not disclose the actual wage rates for employees covered by the Agreement.

[46] From the material before the Commission it would appear that the nature of the duties of a KSB production planner are such that they easily fall within the classification of Level 2 under the Clerks Private Sector Award 2010 and most likely fall within Level 3 of that Award. I note that the Respondent’s contention was that:

“The KSB Production Planner position duties fall squarely within the clerical/administrative type duties of either level 2 or level 3 under the Clerical Award, depending upon qualifications, skills, and experience of the employees and differences in duties required.”  6

[47] Interestingly, in the current proceedings the Applicant was contending that the appropriate classification for KSB Production Planners was either C11 or C10 under the Manufacturing Award. When a comparison is made between the two modern awards it would appear that the Applicant was contending for an award classification lower than what may be the correct award rate of pay.

MANUFACTURING AWARD	CLERKS - PRIVATE SECTOR AWARD	RATE OF PAY AS AT 1/7/2013
C11	687.60
C10	724.50
LEVEL 2 - YEAR 1	724.50
LEVEL 2 - YEAR 2	738.00
LEVEL 3	765.20

[48] If the actual wage rates for a C10 employee employed under the Agreement are higher than the Manufacturing Award rate it would be relatively easy for the Applicant and the Respondent to calculate a wage rate for KSB Production Planners which would maintain the relativity between a C10 under the Manufacturing Award and a Level 2 or 3 under the Clerks - Private Sector Award.

[49] I also observe that there does not appear to be any enterprise agreement or workplace agreement in place that would cover KSB Production Planners. This suggests that the Clerks - Private Sector Award both applies to and covers the KSB Production Planners. If this is so then the KSB Production Planners are entitled to exercise their rights under the Act in relation to bargaining for an enterprise agreement.

COMMISSIONER

ATTACHMENT A

ATTACHMENT B

 1   KSB submissions of 12 April 2013 at 4.4

2 AMWU response submissions 23 April 2013

 3 (1996) 66 IR 182

 4 (1993) 40 FCR 511

 5 [1989] FCA 369

 6   KSB submissions of 12 April 2013 at pg 12

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